Long Island Airport Limousine Service Corp.

National Labor Relations Board - Board Decisions

Jun 14, 1971

191 N.L.R.B. 94 (N.L.R.B. 1971)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Long Island Airport Limousine Service Corp. and Lo-
cal 1034, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America
and Yacov Yardeny. Cases 29-CA-1890, 29-CA-
1890-2 and 29-CA-1946
June 14, 1971
DECISION AND ORDER
On December 4, 1970, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled con-
solidated proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
consolidated complaint and recommending that the
consolidated complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner only insofar as they are consistent with
this Decision and Order.
We find, contrary to the Trial Examiner, for reasons
set forth below, that Respondent violated Section
8(a)(3) and (1) by discharging employee I. Michael
Tritsch. We also find, contrary to the Trial Examiner,
that Respondent violated Section 8(a)(1) by coercively
interrogating certain employees about their union ac-
tivities; by threatening employees with strict enforce-
ment of its rules and regulations if the Union was se-
lected; and by creating an impression of surveillance of
its employees' union activities.
1. Employee I. Michael Tritsch began his employ-
ment with Respondent as a driver in March 1969. He
signed a union authorization card on October 30,
1969,2 and was, in the words of the Trial Examiner,
"apparently the employee spearhead of this [organiza-
tional] activity." Tritsch testified that on November 3
he solicited and received a signed authorization card
from fellow employee Johnson while both were at Re-
spondent's dispatcher's office at the Eastern Airlines
building at John F. Kennedy Airport. An authorization
I General Counsel had excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d
362 (C.A 3). We find no such basis for disturbing the Trial Examiner's
credibility findings in these cases.
I All events referred to hereinafter occurred in the year 1969, unless
otherwise indicated
card bearing Johnson's signature was received in evi-
dence. Tritsch's signature, the date, and the notation
"Kennedy Airport (EAL)," were on the back of the
card. Tritsch stated that dispatcher Cerillo, an admit-
ted supervisor, was in the office at the time the card was
signed. Tritsch also testified that he solicited two other
employees later that same day at La Guardia Airport.
Shortly thereafter, while still at La Guardia Airport,
Tritsch stated that he was approached by employee
Prisco who said that he, Prisco, had heard through
some other driver that Tritsch was one of the instiga-
tors in the union activity and asked why Tritsch had
not approached him about it. Tritsch told Frisco that
he had not attempted to solicit a card from him because
"he was a known company informer." Prisco volun-
teered that he did not believe Respondent could afford
a union.
Respondent admitted that Tritsch was discharged
the very next day, November 4, while Tritsch testified
that he was suspended on that day and discharged on
November 5. According to Tritsch, he reported to
work at Respondent's garage on November 4 at 2 p.m.,
his scheduled starting time. With him he had his mani-
fest and cash receipts from the previous day, which
were normally turned in to one of Respondent's office
clerical employees. It is admittedly routine procedure
for drivers working the second shift, as Tritsch did, to
retain their previous day's cash receipts, since Re-
spondent's clerical employees were not on duty at the
close of the second shift. Respondent's manager,
Marino, whose office is separated from the clerical em-
ployees' office by a window, suddenly appeared and
told Tritsch he would accept his manifest and receipts.
Marino directed Tritsch out of the office and into the
garage. There Marino looked at the manifest and told
Tritsch he was fired, amended it to say he was sus-
pended, and then ordered him to telephone the next
day. According to Tritsch, Marino replied affirmatively
when Tritsch asked, "what am I suspended for, for not
putting mileage on the manifest?" Tritsch telephoned
Marino the next day, as instructed, and was told he was
fired. The following day, November 6, Tritsch went to
the garage to pick up his paycheck for the previous
week and turn in his uniform. Tritsch again asked if the
"official reason" for his discharge was his failure to
record the day's mileage figures. Marino replied that it
was. Employee Reid, another driver, testified that he
asked Marino why Tritsch had been discharged, and
Marino said that it was because Tritsch failed to record
his mileage on the manifest. Marino's testimony is in
substantial agreement, in this regard, with that offered
by Tritsch and Reid. Marino stated that he discharged
Tritsch on November 4 after Tritsch reported for work
with allegedly improperly completed mileage reports
and gasoline receipts.
191 NLRB No. 16
LONG ISLAND AIRPORT LIMOUSINE
Respondent's witnesses have offered conflicting ver-
sions of the decision to discharge Tritsch. It was Mari-
no's testimony that he had suggested to Stuart, Re-
spondent 's manager, at some earlier time, that Tritsch
be discharged. Marino stated, "He [Stuart] left the mat-
ter to me. He agreed with whatever I was doing."
Stuart, on the other hand, testified that on November
4 he ordered-Marino to discharge Tritsch after an office
employee showed him Tritsch's allegedly incomplete
gasoline receipts. Stuart stated, "On November 4, I
received two slips and that's when I turned to Mr.
Marino; I said Mr. Marino this is ridiculous. This man
will never learn. I want him discharged."
Respondent also offered shifting reasons to explain
Tritsch's discharge. Thus, Marino told Tritsch and
Reid that Tritsch was fired for his failure to record his
daily mileage figure on his manifest. In his testimony
at the hearing, Marino stated that failure to record
mileage as well as the submission of allegedly incom-
plete gasoline receipts were the precipitating factors in
his decision to discharge Tritsch. Stuart claimed that he
decided to terminate Tritsch's employment on the basis
of the incomplete gasoline receipts and Tritsch's entire
record, including past speeding violations, frequent
lateness, and his failure to promptly turn in his daily
cash receipts. The various reasons advanced by Re-
spondent in support of its decision to discharge Tritsch
are not corroborated by the record before us. General
Counsel offered uncontradicted testimony by other
drivers to the effect that they frequently failed to record
their mileage on the manifest yet were never punished
for it. No evidence was offered suggesting that any
other driver had ever been discharged for such conduct.
In addition, there is no substantive evidence in the
record to support Respondent's assertions regarding
Tritsch's other alleged rule violations. The allegedly
incomplete gasoline receipts were not offered, there was
no record of Tritsch's alleged speeding violations, and
the instances of delayed turn-in of cash receipts and
lateness had not transpired at times material to the
discharge.
The Board and the courts have long held that proof
of knowledge of union activity may be established by
circumstantial as well as by direct evidence.' We believe
that a finding of such knowledge is warranted on the
basis of all the evidence in the record before us. Particu-
larly pertinent are the facts that Tritsch was the union
spearhead; that he had actively engaged in card solici-
tation on the day before his discharge; of the timing of
the discharge; of the abrupt nature of the discharge; of
the contradictory testimony of Respondent' s witnesses
' Wiese Plow Welding Co., Inc., 123 NLRB 616, 618; Piezo Manufactur-
ing Corporation, 125 NLRB 686, enfd. 290 F.2d 455,456 (C.A. 2), N.L.R.B.
v. Tru-Line Metal Products Company, 324 F 2d 614 (C.A. 6), cert denied
377 U.S. 906.
95
regarding the decision to effectuate the discharge; of the
shifting and essentially pretextual reasons offered as
cause for the discharge; and of the disparate treatment
according to Tritsch for his alleged misdeeds. This evi-
dence raises more than a suspicion of illegal motiva-
tion. Indeed, the only plausible inference that can be
drawn from this record is that Respondent did learn of
Tritsch's union activities-and discharged him for these
activities. Accordingly, we find that Respondent dis-
criminatorily discharged Tritsch in violation of Section
8(a)(3) and (1) of the Act.
2. The undisputed evidence shows that Stuart ques-
tioned employees Reid and Yardeny as to what they
thought about the Union, whether they were for or
against the Union, and whether they participated in
obtaining signatures to union cards. The Trial Exam-
iner found the interrogations were not systematic, no
questions were asked about the activities of fellow em-
ployees, and there was no evidence of antiunion
animus. Since the parties were then engaged in collec-
tive bargaining, the Trial Examiner was of the opinion
that an 8(a)(1) order would only serve to disrupt the
relations between the parties and therefore recom-
mended that said allegations be dismissed.
We cannot agree with the Trial Examiner's conclu-
sion. These acts of interrogation did not occur in isola-
tion, but in a context of Respondent's other unfair labor
practices, including the discriminatory discharge of
Tritsch and other incidents discussed infra. We find
that these inquiries were made for the purpose of ascer-
taining the union sympathies and attitudes of these
employees. Interrogations of this nature, engaged in by
Respondent's president, without any assurances
against reprisal, and in the context of other antiunion
activity, reasonably tend to be coercive. In these cir-
cumstances, we accordingly find that Respondent un-
lawfully interrogated its employees in violation of Sec-
tion 8(a)(1). We are unpersuaded by, the Trial
Examiner's suggestion that such unlawful conduct
should go unremedied because of an existing bargain-
ing situation. Indeed, in this regard, we note that the
Union, equally engaged in the bargaining relationship,
found it appropriate to file the instant charges. It would
thus appear that the Union had no fear of disturbing
the negotiations. In view of Respondent's conduct as
established by the entire record, we believe that any
fear of disturbing the bargaining relationship would be
misplaced.
In the course of the various instances of interroga-
tion, Stuart stated to the effect that if the Union came
in, he would be forced to treat all the employees alike,
that he would not have any flexibility in the application
of the rules. The Trial Examiner, without comment,
apparently concluded that this remark was not a viola-
tion of Section 8(a)(1). We disagree. In the context of
the events in which this remark was made, shortly after
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tritsch was discharged for his alleged failure to obey an
often broken regulation, we are of the opinion that this
was a threat of more onerous working conditions,
should the employees choose the Union to represent
them.4 Accordingly, we find that Respondent's state-
ments to Reid and Yardeny that a union would force
him to apply its rules equally to all employees was a
threat of reprisal in violation of Section 8(a)(1) of the
Act.
Yardeny testified without contradiction that shortly
after the Board election, while he and another em-
ployee were in Stuart's office, Stuart announced the
results of the election and, continuing his conversation
with the other employee, read from a piece of paper the
names of four or five employees who, in Stuart's opin-
ion, had voted against the Union. The Trial Examiner
concluded that this was not a violation of Section
8(a)(1) since Stuart did not ask Yardeny to affirm or
deny the correctness of his assumption, and hence did
not ' require Yardeny to declare himself for or against
the Union. The Trial Examiner's analysis is mis-
directed. Stuart's behavior was clearly an attempt to
create an impression of Respondent's surveillance of
the employees' union activities. That Yardeny was not
required to declare his preference is, in view of this,
completely irrelevant. Accordingly, we find that Re-
spondent's conduct violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Tritsch be-
cause of his activity on behalf of the Union, we shall
order Respondent to cease and desist therefrom and to
offer I. Michael Tritsch immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent one, without prejudice to
his seniority and other rights, privileges, or working
conditions, and make him whole for any loss of earn-
ings suffered by reason of such discrimination, by pay-
ing him a sum of money equal to the amount he would
have earned from the date of the discrimination against
him, to the date of Respondent's offer to reinstate him
as aforesaid, less his net earnings , during that period,
in accordance with the Board's formula set forth in F
W. Woolworth Company, 90 NLRB 289, with interest
thereon at the rate of 6 percent per annum, as set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
° It is well established that an employer may not threaten his employees
with loss of privileges for supporting a union, nor treat them differently
because they have chosen a union as their collective-bargaining representa-
tive. See N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645, 647, 650 (C.A 6),
cert. denied 345 U.S 906. Similarly, it has been held a violation of Section
8(a)(1) where the employer told the employees during an organizational
campaign that they "would have to work harder under the Union." Plasko-
lite, Inc, 134 NLRB 754, 763, enfd. 309 F.2d 788 (C A 6)
Having also found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights protected by Section 7 of the Act we shall order
that Respondent cease and desist from such conduct
and take certain affirmative action designed and found
necessary to effectuate the policies of the Act. The
unfair labor practices found being of the character
which go to the very heart of the Act, we shall also
order Respondent to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Long Island
Airport Limousine Service Corp., Farmingdale, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 1034, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, by discharging employees or in any other
manner discriminating against its employees in regard
to their hire or tenure of employment or any term or
condition of their employment.
(b) Coercively, or otherwise unlawfully, interrogat-
ing its employees as _to their union activities or about
the union activities of other employees.
(c) Conveying to employees the impression that Re-
spondent is engaged in surveillance of their union ac-
tivities.
(d) Changing, or threatening to change, any rules
with respect to working conditions because its em-
ployees have selected a labor organization as their col-
lective-bargaining agent.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form labor organizations, to
join or assist Local 1034, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a con-
dition of employment as authorized by the Labor-Man-
agement Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
LONG ISLAND AIRPORT LIMOUSINE 97
(a) Offer to I. Michael Tritsch immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent one, without preju-
dice to his seniority, or other rights , privileges , or work-
ing conditions, and make him whole for any loss of
earnings suffered in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Notify immediately the above-named individual,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement , upon applica-
tion after discharge from the Armed Forces, in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act.
(d) Post at its garage in Farmingdale, New York, and
at its dispatcher 's office at John F . Kennedy Airport,
New York, copies of the attached notice marked "Ap-
pendix." ' Copies of said notice , on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent 's authorized representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after , in conspicuous places, including all places where
notices to employees are customarily posted . Reasona-
ble steps shall be taken by Respondent to insure that
said notices are not altered , defaced , or covered by any
other material.
(e) Notify the Regional Director for Region 29, in
writing , within 20 days from the date of the receipt of
this Decision , what steps the Respondent has taken to
comply herewith.
IT IS ALSO ORDERED that the consolidated com-
plaint'be dismissed insofar as it alleges violations of the
Act not specifically found herein.
CHAIRMAN MILLER AND MEMBER KENNEDY, dis-
senting:
We would affirm the Trial Examiner 's dismissal of
the complaint in its entirety. The record does not war-
rant reversal of the Trial Examiner 's finding that the
General Counsel had failed to establish company
knowledge of Tritsch 's union activity at the time it
discharged him. The Trial Examiner's conclusions with
respect to the "small plant" rule and the testimony of
Tritsch and Yardney are clearly correct . Contrary to
the observation of our colleagues , timing of a discharge
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
and suspicion of illegal motivation will not support an
inference of knowledge of union activity.
Similarly , we would affirm the Trial Examiner with
respect to the alleged 8(a)(1). We do not view the stat-
ute as precluding an employer from stating that he
would be forced to treat all employees alike . Finally,
the Trial Examiner was correct in his conclusion that
the two instances of interrogation do not warrant a
remedial order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
1034 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America , or any other union, by discharging or
otherwise discriminating against our employees
because of their union or concerted activities.
WE WILL NOT coercively, or otherwise unlaw-
fully, interrogate our employees as to their union
activities or about the union activities of other
employees.
WE WILL NOT convey to employees the impres-
sion that we are keeping their union activity under
surveillance.
WE WILL NOT change, or threaten to change,
any rules with respect to working conditions, be-
cause our employees have selected a labor organi-
zation as their collective-bargaining agent.
WE WILL NOT in any other manner interfere
with , restrain, or coerce employees in the exercise
of their right to self-organization, to form, join, or
assist the above-named Union , or any other labor
organization , to bargain collectively through rep-
resentatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer I. Michael Tritsch immediate
and full reinstatement to, his former job or, if that
job no longer exists, to a substantially equivalent
position , without prejudice to his seniority or
other rights and privileges , and make him whole
for any loss of pay suffered as a result of discrimi-
nation against him.
LONG ISLAND AIRPORT
LIMOUSINE SERVICE
CORP.
(Employer)
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By
(Representative) (Title)
WE WILL notify immediately the above-named in-
dividual , if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Fourth Floor, 16 Court Street, Brooklyn, New
York 11201, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner : This proceeding
tried before me at Brooklyn, New York, on July 22, 23, 29,
and 30 , 1970, with all parties present and represented by
counsel, involves a complaint ' pursuant to Section 10(b) of
the National Labor Relations Act, as amended (herein the
Act), alleging that in the course of an organizational cam-
paign by Local 1034 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America
(herein Respondent or Company ), the latter interfered with,
restrained , and coerced its employees in the exercise of their
rights under Section 7 of the Act, and on or about November
4, 1969, and February 20, 1970 , discharged and thereafter
refused to reinstate I. Michael Tritsch and Yacov Yardeny,
respectively, because they assisted and supported the Union.
Respondent 's answer admitted certain allegations of the com-
plaint, but denied the commission of any unfair labor prac-
tice. For reasons hereafter stated I find that the General
Counsel failed to prove the allegations of the complaint by a
preponderance of the credible evidence , and recommend that
said complaint be dismissed in its entirety.
At the trial full opportunity was afforded all parties to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally on the record , and to submit briefs.
Oral argument was waived . A brief submitted by the General
Counsel has been duly considered . No brief was received
from Respondent . Upon the pleadings , stipulations of coun-
sel, the evidence , including my observation of the demeanor
of the witnesses , and the entire record in the case, I make the
following:
Issued May 19, 1970, on charges filed December 29, 1969 ; January 6
and March 6, 1970.
FINDINGS OF FACT 2
The Unfair Labor Practices Alleged
1. Background
Respondent operates a limousine service between Suffolk
and Nassau Counties , Long Island , New York, and the
Kennedy and La Guardia Airports . The Company maintains
its principal offices and a garage for the maintenance of its
limousines at Farmingdale . This office is open only from 9
a.m. to 5 p.m., Monday through Friday. A dispatcher 's office,
which is in operation from 6 a.m . to 1 a.m., every day of the
week, is also maintained in the Eastern Airlines Terminal at
Kennedy Airport. For the convenience of passengers and
drivers, the dispatcher 's office may be communicated with by
private line telephones located in the lobbies of the various
terminals at both airports . In addition , a two-way closed
circuit radio system is maintained for communication be-
tween the dispatcher and the various limousines while they
are in operation.
Late in October 1969, the Union began an organizational
campaign among Respondent 's personnel . Driver I . Michael
Tritsch appears to have been the employee spearhead of this
activity . The parties stipulated that, pursuant to a representa-
tion petition filed by the Union (Case 29-RC-1366), the
Board on January 8, 1970, conducted an election among
Respondent 's employees ; of approximately 41 eligible voters,
26 votes were cast for the Union, 7 against , with 12 chal-
lenged ballots ; and on January 19, 1970, the Regional Direc-
tor certified the Union as the collective -bargaining represent-
ative of Respondent's employees in an appropriate unit.
Shortly thereafter the parties started bargaining, but at the
time of the trial no agreement had apparently been reached.
2. The discharge of Trisch
Tritsch was employed by Respondent as a driver in March
1969, and was so employed until his admitted discharge the
following November 4 or 5.' Literally hundreds of pages of
this all too voluminous record is devoted to testimony as to
whether or not Tritsch was a punctual employee; properly
complied with Respondent 's regulations regarding turning in
cash receipts ; maintained and turned in proper records and
reports; and failed to confine his purchase of gasoline , except
in emergency, to authorized-stations. All this testimony I find
irrelevant to the one issue which I regard as dispositive of this
aspect of the case . This is true because it is well settled that
to establish a violation of Section 8(a)(3) of the Act, the
General Counsel must establish by a preponderance of the
evidence that when the employer acted he was aware that
union activity was in progress . Otherwise any discrimination
in which the employer may have engaged cannot be for the
proscribed intent of encouraging or discovering union mem-
bership. Hadley Manufacturing Corporation, 108 NLRB
1641, 1650 . Because the evidence is uncontradicted that nei-
ther the Union nor any employee had any contact with or
made any demand upon Respondent until November 10, and
Respondent 's officials all deny that they had such information
prior to the last mentioned date, the General Counsel to
establish company knowledge relies on (1) the testimony of
Tritsch regarding the signing of a union card ; (2) the tes-
timony of Yardeny that he discussed the Union with Com-
I There is no issue of commerce or labor organization . Allegations of the
complaint admitted by the answer establish these elements. I find those facts
to be as pleaded.
' Respondent admitted that it discharged Tritsch on November 4. Tritsch
testified that he was suspended on November 4 and discharged on Novem-
ber 5. 1 find it unnecessary to resolve the conflict
LONG ISLAND AIRPORT LIMOUSINE 99
pany President Stuart' before Tritsch was discharged; and (3)
the Board's "small plant" doctrine.
Tritsch testified on direct examination that between 7 and
8 a.m., on November 3, but was not really sure of the time,
he solicited fellow driver Johnson to sign, and that the latter
then signed a union card in the dispatcher's office at Kennedy
Airport, and that present in the office at the time, in addition
to he and Johnson, were dispatcher Ed Cirillo, an admitted
supervisor, and the clerical who assisted Cirillo during the
morning hours. The clerical did not testify. Cirillo denied that
he ever saw Tritsch with a union card, or saw Johnson or any
other employee sign a card at any other place. Indeed, ac-
cording to Cirillo, the first information he had that a union
was in the picture was approximately a week after Tritsch
was discharged when Company President Stuart told him
about the visit the latter had from representatives of the
Union, and cautioned Cirillo not to interfere in any way with
the organizational activities of the drivers. Cirillo also iden-
tified the dispatcher's timesheets for November 3, which are
in evidence, and testified that according to those sheets
Tritsch and Johnson were never in the dispatcher's office at
Kennedy at the same time on that date.' Called on rebuttal,
Tritsch testified that Johnson had a special, or contract run
to Kennedy (such runs not being recorded on the dispatch
sheets) and reiterated his prior testimony that Johnson signed
a union card that morning in the dispatcher's office, claiming
this was done at the end of Johnson's special run and before
he left for his regular run scheduled to leave Farmingdale at
8:50 a.m. and Babylon at 9:05 a.m. Although Tritsch testified
on direct that Johnson signed the card between 7 and 8 a.m.,
on rebuttal he fixed the time of such signing as within 10
minutes after he reached the dispatcher's office, which he said
was about 7:45 a.m. Tritsch made no claim that Cirillo saw
the act of card signing, or that Cirillo was even looking in the
direction of where he and Johnson were located while the
latter allegedly signed the card.
Yacov Yardeny, also a driver allegedly discriminatorily
discharged by Respondent, testified that he was approached
in the drivers' room by Company President Stuart, who com-
mented that he had heard about some union activity, and
asked if Yardeny knew anything about it. When asked to fix
the time of this conversation, Yardeny stated that he actually
had two conversations with Stuart, one "after Tritsch was
fired, and I am not sure, I think I had one discussion before
Mr. Tritsch was fired." Later, when Yardeny stated that he
was unable to fix the exact date of the conversation and was
asked to give an approximate date, he replied, "it was the end
-sometime in the middle of November." And when it was
pointed out to Yardeny that he had referred to a conversation
with Stuart prior to Tritsch's discharge (on November 4), and
In the transcript and the General Counsel's brief this name is spelled
both Stuart and Stewart When the witness testified, the name appears as
Stuart, and the complaint has that spelling Accordingly, I use Stuart
throughout this Decision.
5 According to the dispatch sheets for November 3, Tritsch started on a
run to Kennedy at 6:28 a.m. The sheets do not indicate the time of his arrival
at Kennedy, but Tritsch concedes that it was between 7:30 and 7.40 a.m.,
and further conceded that by the time he unloaded his passengers and
reached the dispatch office, it must have been close to 7.45 or 7:50 a.m. The
sheets also show that Tritsch was dispatched on a run from Kennedy, but
the entry of the time is illegible. Cirillo testified that this was at 8 20 a in.
The dispatch sheets also show that Johnson's first run that day was from
Babylon but again the exhibit is illegible as to time Cirillo testified that this
run leaves Farmingdale at 8.50 a.m., and Babylon at 9.05 a in, these points
being some 40 to 45 miles from Kennedy, approximately an hour driving
time at that time of the day. Counsel for Respondent was granted leave to
substitute photocopies of the dispatch sheets for the originals, provided the
copies were clear and legible. The copies forwarded to me are not legible in
many respects, and I am unable to rely on them.
was asked to fix the time of that, he replied, "Sometime before
-about a few days before Mr. Tritsch was fired." On the
other hand Stuart denied that he had any information or
discussion with Yardeny or anyone else concerning the Union
until November 10, when representatives of the Union made
demand upon him for recognition. He did not deny the state-
ment attributed to him by Yardeny following the discharge
of Tritsch. This is the sum total of the testimony relied on by
the General Counsel to establish company knowledge of
union activity at the time it discharged Tritsch, except for
reliance on the "small plant" rule.
3. Conclusions regarding the discharge of Tritsch
The equivocal testimony of Yardeny I find to be insufficient
to satisfy the burden which the General Counsel bears, of
establishing company knowledge, which is an essential ele-
ment of his case, by a preponderance of the evidence. Nor do
I find Tritsch's testimony any more satisfactory to establish
company knowledge of union activity. He was unable to state
that dispatcher Cirillo in fact saw Johnson sign a union card;
although he testified on direct that Johnson signed the card
between 7 and 8 a.m ., on rebuttal he stated that he did not
arrive at Kennedy on the day in question until between 7:30
and 7:40 a.m., and that he had to discharge his passengers and
drive to the Eastern terminal after that; and pleaded inability
to recall, because of lapse of time, many rather important
details relating to his conduct, but had positive and complete
recollection that Johnson had a special or contract run to
Kennedy on the day in question, which would not appear on
the dispatcher's log. When all these factors are considered,
along with the fact that the General Counsel did not call
Johnson as a witness, nor give any explanation for the failure
to do so, I must and do find and conclude that the testimony
of Tritsch and Yardeny in this case, is insufficient to over-
come the positive denials of Company President Stuart, dis-
patcher Cirillo, and General Manager Marino that they had
no information concerning union activity among Respond-
ent's employees prior to November 10, 1969.
Equally unavailing to support the General Counsel case is
the "small plant" rule. The premise upon which that rule
rests is that when a small number of employees work in close
proximity and,under,the constant eye of some level of super-
vision, and it is established' that while so employed union
activity took place, it is so unlikely that such activity could
have gone unnoticed by management, and that a denial of
knowledge of such union, activity can not normally be re-
garded as credible. Quest-Shon Mark Brassiere Co., Inc., 80
NLRB 1149, 1150; N.L.R.B. v. Abbot Worsted Mills, Inc.,
127 F.2d 438, 440 (C.A. 1). The facts here are the antithesis
of those upon which the "small plant" rule rests. Here the
employees work alone, and except if they go to the office to
pick up their car after 9 a.m., or turn it in before 5 p.m., or
have occasion to go to the Eastern Terminal at Kennedy, they
never see a supervisor; all communication between the em-
ployees and supervision during their work hours being by
two-way radio.
Accordingly, and for the reasons stated, I find that the
General Counsel failed to prove by a preponderance of the
evidence that when Respondent discharged Tritsch, it was
aware of any union activity among its employees, and that the
allegation in the complaint that Tritsch's discharge was dis-
criminatorily motivated, must be dismissed.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Alleged interrogation, threats, and coercion
To establish independent violations of Section 8(a)(1) of
the Act, the General Counsel relies on the testimony by driv-
ers Reid and Yardeny with respect to alleged conversations
they had with Company President Stuart. The details of these
incidents follow:
(a) Reid testified that, about 2 weeks following Tritsch's
discharge, he was approached by Stuart in the drivers' room,
and asked if he (Reid) was for or against the Union. Reid
replied that he was for the Union. Stuart then asked if Reid
had anything to do with getting union cards signed, and Reid
replied that he had because he thought the employees needed
a union. Stuart, who testified at length, did not deny that he
made the inquiries attributed to him by Reid.
(b) As pointed out in my consideration of the discharge of
Tntsch, shortly after the Union made its recognition demand,
Stuart told Yardeny that he had some information about
union activity and asked if the latter knew anything about it.
Yardeny replied in the negative. Stuart did not deny Yar-
deny's testimony in that regard.
(c) According to Reid, on other occasions, neither the time
nor the circumstances of which are disclosed by the record,
Stuart asked him if he thought the men would benefit from
the Union; stated that the men would be better off without
the Union, and would only be hurting themselves by getting
a union because he (Stuart) would have to be a lot stricter in
enforcing the Company's rules and regulations. Stuart admits
that he had such a conversation with Reid, but claimed that
what he said was that if the Union came in he would have to
apply the rules equally to all employees and that this lack of
flexibility is what he had against unions generally. I credit
Stuart's version of this conversation.
(d) Yardeny also testified that on an occasion, identified as
to time only as occurring after Tritsch's discharge, he went
to see Stuart regarding a personal problem he had with some
of the office employees, and that in the course of conversation
Stuart asked Yardeny what the latter thought about the
Union. Yardeny admittedly replied that he regarded a union
like a father-in-law interfering with his son-in-law's affairs.
According to Yardeny, Stuart then stated that the Union
would not help the men, because if the Union came in he
would have to enforce certain rules that had not been strictly
enforced in the past, mentioning particularly that Yardeny
was at times late, and while he liked his work, he could not
protect him because he could not go to the Union and say that
he wished to treat Yardeny differently from other employees.
As heretofore stated, Stuart denied that he ever stated that he
would have to be more strict in the enforcement of regula-
tions if the Union came in, but admitted that he told em-
ployees that he would have to treat all of them alike. He
neither admitted nor denied that he stated that the Union
would not help the man. As in the case of a similar conversa-
tion involving Reed, I credit Stuart's version of this conversa-
tion.
(e) Stuart admits that he posted a notice on the bulletin
board calling a meeting of all drivers for December 16, in two
sessions ; one for the morning drivers and one for the after-
noon and evening drivers, and that he addressed both groups.
Reid, and Yardeny for part of the time, attended the session
for the morning drivers. No testimony was given as to what
Stuart said at the other session . According to Reid's tes-
timony on direct, Stuart explained what the company policies
had been in the past; how raises worked; how holidays were
set up and what they would be like in the future; that senior
drivers who qualified would receive Christmas bonuses and
sick leave, but didn't know if the Christmas bonus would be
paid for 1969 if the Union came in; and that a profit-sharing
plan "was supposed to come in" at some future time, but if
the Union didn 't come in that it might be made effective for
1969. On cross-examination Reid changed his testimony,
stating that at the meeting referred to Stuart stated that raises
would be in accordance with past policies ; the Company
would continue its past policy of designating 10 holidays of
which a man could select 5 ; and he hoped to continue the
Christmas bonus in the future as he had in the past. On
redirect Reid made another change in his testimony , attribut-
ing to Stuart the statement that some drivers who were receiv-
ing a Christmas bonus would not be receiving it if the Union
came in.
Yardeny also testified regarding this meeting, but stated
that he came in late and that Stuart filled him in on what had
previously been said . According to Yardeny, Stuart stated
that there would be a profit-sharing plan for senior employees
starting next year; there would be additional holidays; and
that at Christmas time he would give certain bonuses to the
drivers. He gave no testimony that the operation of the bonus
or profit-sharing plans in 1969 were in any way conditioned
on the advent of the Union.
Stuart admitted speaking to his employees on December
16, claiming that he told them of the background of the
Company, how benefits had increased as the Company grew,
and that if the business continued to prosper employees could
expect increased benefits in all areas. Stuart admits that for
the 2 preceding years he had paid a Christmas bonus on a
"highly selective basis" (length of service and his estimate of
the value of the man to the Company), and that while he
spoke employees asked about the Christmas bonus, but he
told them that on advise of counsel he could not discuss that
subject, and therefore made no comment about it. Stuart also
admits that for Christmas 1969 no bonus was paid. He was
not asked and gave no reason for not paying the bonus at that
time.
(I) Yardeny testified that a day or two following the vote
in the Board election , he went into Stuart's office , where the
latter was in conversation with another driver, and inquired
about the outcome of the vote. Stuart stated the result and
then, continuing his conversation with the driver, read from
a piece of paper the names of four or five employees (not
including Yardeny) who, in his opinion , had voted against the
Union, and then commented in substance, that fits exactly,
these must be the seven who voted against the Union . Stuart
gave no testimony concerning this incident.
5. Conclusions regarding alleged independent 8(a)(1)
allegations
Upon consideration of the entire record , I find and con-
clude that the General Counsel failed to prove by a prepon-
derance of the evidence that Respondent engaged in any
conduct violative of Section 8(a)(1) of the Act.
Although I do not credit Stuart's testimony that on advice
of counsel he refused to make any comment about the bonus,
I nonetheless do not regard the testimony of Yardeny and
Reed, particularly in view of the contradictory nature of the
latter's testimony, as sufficient to establish by a preponder-
ance of the credible evidence that in his speech to employees
Stuart made any threat to withhold benefits if the employees
selected the Union, or any promise of benefits if they rejected
the Union. No evidence was introduced from which it may
appropriately be inferred that, in failing to pay a bonus at
Christmas 1969, Respondent was motivated by the presence
of the Union , and hence the failure to pay that bonus cannot
be regarded as a violation of Section 8(a)(1) of the Act. J. J
Newberry Company, 183 NLRB No . 69, and the cases there
cited.
LONG ISLAND AIRPORT LIMOUSINE
Likewise, I find and conclude that Stuart 's naming of the
seven employees who in his opinion voted for the Union,
under the circumstances of this case, was not a violation of
Section 8(a)(1) of the Act. Stuart did not ask Yardeny to
affirm or deny the correctness of Stuart 's assumptions, and
hence did not require the latter to declare himself as a propo-
nent or opponent of the Union.
While Stuart's questions to Reid and Yardeny as to what
they thought about the Union , whether they were for or
against the Union, and whether they participated in obtaining
signatures to union cards might in most instances be regarded
as a violation of Section 8(a)(1), I do not think such a finding
should be made here. There was no systematic interrogation,
only 2 of approximately 41 unit employees being affected; the
questions related only to activities of these 2 employees.
Nothing was asked about the activity of fellow employees;
there is no evidence of general union animus, or of any intent
to impede or disrupt the organizational activities of the em-
ployees; and the Union won the election and Respondent has
accepted that fact and, when the hearing closed , was bargain-
ing with the Union . In such a posture, a 8(a)(1 ) order can only
serve to disrupt relations between the parties ; it cannot serve
to improve them . Accordingly, I recommend that the 8(a)(1)
allegations of the complaint be dismissed in their entirety.
6. The discharge of Yardeny
Yardeny worked for Respondent as a driver from June 22,
1969 , until his discharge in February 1970.6 His hours of
work were from 6 a.m. to 2 p.m., each day of the week except
Saturday. Yardeny frequently opened discussions with Stuart
concerning the Union , but apparently by design sought to
leave Stuart with the impressions that he was opposed to the
Union . Although the union campaign was in progress from
early to mid-October until the election on January 8, 1970,
Yardeny did not sign a union card until sometime after the
election , but there is no evidence that Respondent was aware
of that fact until after Yardeny was discharged.7
Yardeny was suspended on February 11, 1970 , following
an accident in which his vehicle was involved on February 10
and, according to the General Counsel , was discharged on
February 19 .1 At the time of his suspension, Yardeny was told
that Respondent was considering his entire work record, in-
cluding specifically ( 1) his record for tardiness; (2) rudeness
to customers; (3) overcharging customers ; (4) failure to fol-
low regulations concerning the fixing of charges for trans-
Except for the month of August when he had a leave of absence
Although the employees selected a bargaining committee following the
election, Yardeny was not a member of that committee. He claimed to have
been very active in union meetings held to formulate bargaining demands
to be presented to the employer , but there is no evidence that Respondent
was aware of that activity.
There is no dispute in the record that Yardeny was suspended on
February 11, because of the accident referred to, and because Respondent
was allegedly investigating other acts of misconduct by Yardeny. While
Respondent admits that it subsequently discharged Yardeny, it did not take
a position as to the exact date the discharge took place . Yardeny at first
stated that he was discharged on Thursday following his suspension, when
he went to the office to get his check (which would be February 12), and
then changed to say that he could not recall whether his visit to the office
was on Thursday of the same week that he was suspended, or the Thursday
of the following week (February 19). General Manager Marino testified that
the investigation of the matters involved was completed the day after he
suspended Yardeny, that he decided to convert the suspension to a dis-
charge, and that he so informed Yardeny However company counsel stated
that the matter was investigated "for several days" after the suspension, but
was unable to state whether the discharge was on February 20, as alleged
to the complaint , or prior thereto . On the foregoing , and the fact that after
the suspension , union representatives met with Respondent regarding Yar-
deny's discharge, I find that the discharge took place on February 19.
101
porting a dog; and (5) the rought handling of company vehi-
cles, including the accident on February 10, 1970 . The facts
with respect to these alleged breaches of duty follows:
Tardiness: To support this allegation , Respondent intro-
duced a summary from its time and attendance records,'
which shows that from July 14, 1969, to February 11, 1970,
excluding the month of August when he was on a leave of
absence, Yardeny was late 17 times, and was suspended on
one occasion for failing to report for work the preceding
day.10 Stuart testified that he spoke to Yardeny about report-
ing late, but did not fix any time when he did so. He also
claimed that General Manager Marino and dispatcher Cirillo
talked to Yardeny about this, but neither of them gave any
testimony on that subject.
Yardeny admits that he was late for work an average of
once a week and that Stuart spoke to him about it "a few
times." However, he fixed no time when these conversations
occurred, except that they were before the election and stated
that after Stuart spoke to him he was never late again.
Yardeny also testified that his tardiness always occurred on
a Monday, and that this happened because on Sunday he
worked until midnight , or 1 a.m ., 11 and that by the time he
got home and to bed , and the necessity of getting up at 5 a.m.
to be at work at 6 a .m., he was simply too tired and overslept,
which made him late on Monday morning."
Rudeness to customers- According to Yardeny, early in
January 1970 , 13 Yardeny picked up a passenger at the
Northeast terminal at Kennedy , and two other passengers at
other terminals and placed all their luggage in the trunk. He
then went to the Air Canada terminal where two other pas-
sengers with a substantial amount of luggage were waiting for
his limousine . According to Yardeny there was insufficient
room in the luggage compartment to accommodate the lug-
gage of the two new passengers , so he prepared to move some
from the luggage compartment and secure it to the roof of the
limousine. However, it was raining at the time and the pas-
senger picked up at Northeast requested that his luggage not
be removed from the inside and placed on top , claiming that
as he was in the limousine first he was entitled to have his
luggage remain in the trunk . According to Yardeny , he told
this passenger that some luggage being of a hard material
does not absorb water , and that such luggage he would put
on top,14 while soft luggage, being absorbant, he would place
inside the vehicle. When the passenger continued to insist
that his luggage not be put on top , Yardeny admittedly told
him that he (Yardeny) had no time to argue with him about
the matter, and that if he wanted to ride in that car he could,
' The original book from which the summary was prepared was made
available to the General Counsel for examination and use in cross -examina-
tion.
11 The dates of tardiness were July 14 and 19, September 9, 24, 26, and
30; October 8, 20, 23, and 28; November 13, December 16 and 23, all in
1969; January 5 and 27; February 2 and 5, 1970. The suspension was on
Ocotber 31 , for failure to report for work or call in on October 30. The
suspension was for 1 week
" Yardeny had testified that his hours of work were from 6 a .m., to 2
p in., to leave him free to teach Hebrew school in the afternoon. Why he had
to work late hours on Sunday he did not explain.
13 The calendar shows that of the dates mentioned in fn. 10, supra only
July 14 and October 20, fall on a Monday ; all the reanuning dates falling
on some other day of the week. The last three dates mentioned are, of
course, after the election
1' The date of this incident is in dispute Yardeny testified that he could
not recall when it happened , but to his best recollection it was a few days
before or a few days after the election According to Stuart, this incident
occurred on February 3
is Yardeny testified without contradiction that drivers are not provided
with a tarpaulin to protect luggage tied to the top of the vehicle from the
weather.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if he did not , there was nothing that he (Yardeny) could
do about it . This passenger then took his luggage and left the
car. The other two passengers whom Yardeny had picked up
before reaching the Air Canada terminal also took their lug-
gage and left the car.
Following this episode Yardeny drove to the dispatcher's
office at the Kennedy terminal to report what had taken
place. The dispatcher , however, had been called by the pas-
sengers and directed Yardeny to telephone Stuart. After
Yardeny told Stuart his version of the facts, the latter asked
to speak to the dispatcher and expressed the opinion that the
passenger appeared to be some kind of a "kook ." The dis-
patcher disagreed , saying that the passenger sounded very
stable to him. Stuart then directed that the passengers in
Yardeny's car be turned over to another driver, and that the
latter return to the Air Canada terminal to pick up the three
passengers that had left Yardeny's car and take all the passen-
gers to their respective destinations . Stuart also directed that
the new driver obtain and report to him , the name, address,
and telephone number of each of the passengers involved,
saying that he wanted to investigate the incident.
Stuart testified that he investigated this incident by inter-
viewing the passenger who was picked up at Northeast Air-
lines. According to Stuart he was informed by the passenger
that his luggage was a carryall bag which Yardeny was
throwing about the trunk, that he merely asked Yardeny not
to throw it about so that the contents would wrinkle, and that
Yardeny replied that it was none of his business , and if he
didn't like the way he (Yardeny) was handling the matter he
could get out of the car. 15 According to Stuart, he regarded
this as impolite conduct toward a passenger , which he could
not tolerate . Yardeny testified that about a week later he
asked General Manager Marino what had happened regard-
ing this incident , and that Marino told him, "It 's nothing.
Forget about it." Aside from this conversation , according to
Yardeny, the subject was never mentioned again until after
his suspension on February 11. The dispatcher involved in
this incident did not testify . Marino did not deny the afore-
mentioned remark attributed to him by Yardeny . According
to Marino, this was one of the matters involving Yardeny that
was under investigation at the time of the latter's suspension
and that the investigation was not completed until the day
following the suspension.
Overcharging passengers: According to Stuart , he received
a complaint from a customer on February 3, wanting to know
why he and his wife had been charged $ 10 for the trip from
Westbury to Kennedy , but only $7.50 for the return trip."
Ascertaining from his records that Yardeny was the driver on
the trip to Kennedy , which took place several weeks earlier,
Stuart called upon Yardeny to explain . According to Stuart,
Yardeny at first claimed to have no recollection of the inci-
dent, but later stated that he did recall it, and thought the two
people were not related and hence charged two single fares.
According to Stuart , when he pointed out to Yardeny that the
latter had reported on his manifest for the particular day the
collection of $7.50 for a fare and a half on that trip, Yardeny
merely shrugged his shoulders . Yardeny admits this conver-
sation but claimed he went further than Stuart indicated in
explaining the incident . According to Yardeny, he explained
that this occurred at a very busy time , and that perhaps he
was handed $10 and the customer stepped to one side and he
No objection was made to the receipt of this testimony
16 The regular fare from Westbury to Kennedy is $5 per person, but two
members of the same family pay 1 '/ times the single one -way fare, or $7 50.
took it that the remainder was a tip, having found customers
to be liberal tippers."
The dog incident: Respondent instructs its drivers that if a
passenger has an unusual amount or type of baggage, they are
to call the dispatcher to ascertain if an extra charge should
be made and, if so , the proper amount thereof. Yardeny
admits that he was aware of this requirement . On one occa-
sion, which according to Yardeny occurred in November
1969 , he took a passenger from some undisclosed point to
Kennedy Airport, the passenger being accompanied by a
dog.'B According to Yardeny , he informed the passenger that
there would be an extra charge for the dog, and while enroute
tried to get through to the dispatcher to find out how much
to charge for the dog , but was unable to do so because his
radio was jammed . Arriving at the airport , this passenger
when discharged at the United Terminal was charged $8
($6.25 fare and $ 1.75 for the dog). Yardeny did not explain
why he did not, upon arrival at the United Terminal, use the
courtesy phone just inside that terminal to call the dispatcher
for the proper charge, if any, for the dog . Yardeny admits that
when he received this fare on his manifest he mistakenly
recorded only the fare of $6.25, and that when he recalled the
dog he changed this entry to $8. However , Yardeny did not
state when he made this change . In any event , after discharg-
ing this passenger, Yardeny went to the dispatcher 's office in
the Eastern Terminal . In the interim the passenger appar-
ently believing the $1.75 charge for the dog was improper or
excessive, called the dispatcher and complained, so that when
Yardeny arrived the dispatcher had the passenger 's version of
the incident . The dispatcher involved is not identified by the
record . Dispatcher Cirillo gave no testimony on this incident.
Company President Stuart testified that he was told by both
the dispatcher and Yardeny that when the latter got to the
dispatcher 's office the dispatcher asked to see his manifest and
observing the entry of $6.25, asked about the extra charge.
Yardeny replied that he had forgotten about that and erased
the $6.25 entry and put down $ 8. Yardeny admits that he
discussed the matter with Stuart , and that the incident was
most embarrassing to him , because it appeared that he was
retaining company money which he , would not do.
Rough handling of equipment and accidents: Yardeny ad-
mits that he was involved in an accident with his vehicle on
December 15, 1969.19 According to Yardeny , this accident
" Other evidence, while not relevant to the motive for the suspension or
the discharge because not mentioned to Yardeny at the time , is relevant for
consideration in evaluating the overall weight of the testimony. Cirillo tes-
tified that on one occasion (date unspecified), Yardeny called in on his radio
that he was leaving the airport with three passengers for Garden City. The
fare for such a trip is $4 . Because there had been a large number of passen-
gers that morning for the neighboring town of Westbury , for which the
charge was $5, and because the fare changes close to the two locations,
Cirillo called Yardeny back and asked for the specific addresses where the
passengers would be taken . Receiving this information , Cirillo told Yardeny
that the $5 fare was applicable to two of the passengers, and a $4 fare to the
other, and that Yardeny should record on his manifest "2 Westbury, 1
Garden City," collecting the appropriate fare in each case Cirtllo testified
that following morning , Yardeny complained to him that he (Cirillo) "did
him out of $2 ," explaining that when Cirillo called him the preceding mom-
ing, he had all ready let the two Westbury passengers off, collected $5 from
each of them , marked his manifest $4 , and that after Cirillo's call he had to
change the manifest to show $5 for each of the two Westbury passengers.
Yardeny was not called on rebuttal to deny Cirrillo's testimony in that
regard.
" The evidence does not disclose the size of the dog, or whether it was
on a leash, or in some kind of container
" Yardeny testified that this accident occurred in mid-November The
accident report completed by Yardeny for filing with the authorities shows
that it occurred on December 15. The copy of this report in evidence does
not indicate the circumstances under which the accident occurred.
LONG ISLAND AIRPORT LIMOUSINE
occurred when his car was struck in the rear by a following
car. He further testified that he made an immediate report of
this accident to the Company by telephone, and that while he
was in the company office filling out the report for the au-
thorities, Stuart came in stated that he had heard about the
accident and was satisfied that Yardeny was not at fault.
Stuart did not deny the statement so attributed to him, and
there is no evidence that Respondent took any action against
Yardeny based on this incident.
Yardeny admits that he was called to task by a mechanic
and by Stuart for driving too fast through water accumulated
in the streets and driveways, and that it was explained to him
that driving fast under such conditions might cause the wir-
ing to get wet and render the brakes inoperative.
Yardeny admittedly was involved in an accident on or near
Kennedy Airport the morning of February 10. He testified
that he was on a narrow roadway feeding into a main traffic
artery and stopped behind a car standing at a stop sign,
awaiting an opportunity to enter the main traffic flow toward
the right. According to Yardeny, he was directing his vision
mainly toward the left to observe when there would be a
break in the traffic; that he saw the car ahead of him start
forward, so he also started forward, but did not notice that
the car ahead of him had stopped again and ran into the rear
of it. Yardeny further testified that when this accident oc-
curred his brakes were wet from water in the roads, and that
the gas pedal was stiff and required substantially more than
the normal foot pressure to make the car accelerate, thus
causing a fast start. According to Yardeny he had driven this
car before and had left an order to the mechanics requesting
that they fix the improper action of the gas pedal and that
when he took that car out that morning he asked the me-
chanic if the gas pedal had been fixed and received a negative
reply. Yardeny also testified that, following the accident
when he came to the Company's office to prepare the required
report, he told General Manager Marino about the defective
operation of the gas pedal and wanted to put a statement to
that effect in his report, but did not do so because Marino
insisted he did not want the insurance company to have that
information. Marino denies that Yardeny mentioned to him
that the gas pedal was functioning improperly, or that he
made any suggestion to Yardeny regarding the contents of
the report made by the latter.20
7. Conclusions as to discharge of Yardeny
In setting forth the facts with respect to this aspect of the
case, I have found it unnecessary to resolve issues of credibil-
ity or to determine whether Yardeny was responsible for any
of the alleged breaches of duty attributed to him. Assuming
without deciding that Yardeny was in fact blameless with
respect to each of the incidents referred to, I nonetheless find
and conclude that the General Counsel failed to prove by a
preponderance of the evidence that Yardeny's discharge was
20 Yardeny testified that he asked Marino to assist him in the preparation
of the report, and that the latter refused, insisting that Yardeny write the
report in his own words The report makes no mention of the alleged mal-
functioning gas pedal.
103
discriminatorily motivated. As heretofore stated there is no
evidence of union animus, nor is there any evidence from
which the inference may appropriately be drawn that Re-
spondent, at the time of the discharge, was aware that
Yardeny was prounion. Yardeny admittedly sought, and suc-
cessfully he assumed, to have Stuart believe that he was op-
posed to the Union, and the latter so assumed. There is no
evidence to establish that Stuart knew or had reason to be-
lieve that the contrary might be true, until after Yardeny was
discharged.21 This is not a case where an active prounion
employee is discharged hard upon the employer's discovery
of his union activity, with the stated reason for the discharge
a pretext. On the contrary, at the time of Yardeny's discharge
Stuart had been aware for almost 3 months that the Union
was organizing, and so far as the evidence shows, had taken
no discriminatory action against any employee. Although I
have made no finding that Yardeny was in fact guilty of the
various breaches of duty with which he has been charged by
Stuart, I am nonetheless convinced, and therefore find and
conclude, that Stuart in good faith thought Yardeny was
guilty of such conduct and suspended and thereafter dis-
charged the latter for that reason alone.
Accordingly, I shall recommend that the allegation in the
complaint that Yardeny was suspended and thereafter dis-
charged because he joined and assisted the Union and en-
gaged in concerted activity for the purpose of collective bar-
gaining and mutual aid and protection, be dismissed.
Upon the foregoing of fact, and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a prepon-
derance of the evidence that Respondent engaged in any
unfair labor practices proscribed by Section 8(a)(1) or (3) of
the Act, as alleged in the complaint.
4. The complaint herein should be dismissed.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
The General Counsel argues that the conversation in Stuart's office
shortly after the election demonstrates that Stuart had by that time learned
that Yardeny was a union supporter. I do not believe that such an inference
is appropriate. While the evidence shows that Stuart did not mention
Yardeny by name, he only mentioned four or at most five alleged antiunion
voters by name and Yardeny's name might have been on the list Stuart had
before him. This evidence, in light of Yardeny's admission that he did not
sign a union card until after the election, is insufficient to overcome Stuart's
testimony that he did not become aware of Yardeny's prounion activity until
after his discharge